Who Should Be Charged with Criminal Conduct?

Volume 109 Issue 4 Dickinson Law Review - Volume 109, 2004-2005

3-1-2005

Jose Padilla and Martha Stewart: Who Should be Charged with Criminal Conduct?

Ellen S. Podgor

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Recommended Citation Ellen S. Podgor, Jose Padilla and Martha Stewart: Who Should be Charged with Criminal Conduct?, 109 DICK. L. REV. 1059 (2005). Available at: https://ideas.dickinsonlaw.psu.edu/dlra/vol109/iss4/8

This Article is brought to you for free and open access by the Law Reviews at Dickinson Law IDEAS. It has been accepted for inclusion in Dickinson Law Review by an authorized editor of Dickinson Law IDEAS. For more information, please contact [email protected]. Jose Padilla and Martha Stewart: Who Should Be Charged with Criminal Conduct?

Ellen S. Podgor*

I. Introduction Prosecutorial discretion plays an important role in deciding who will be charged with criminal conduct, and what, if any charges will be pursued.1 As a result of numerous factors, prosecutorial power has expanded in recent years. For one, there is an increased number of federal criminal statutes.2 Further, broad interpretations of these statutes play a key role in offering new options for prosecutors as they exercise their discretion.3 Prosecutors also have the liberty to charge "cover-up" crimes, 4 such as making false statements or obstructing justice, as opposed to proceeding against the underlying conduct. Additionally, prosecutors have significant leeway in pursuing extraterritorial conduct and they may now proceed against conduct that at one time may have

* Professor of Law, Georgia State University College of Law. The author thanks Cleveland-Marshall College of Law where an earlier draft of this paper served as the basis for a speech given as part of its Criminal Justice Forum. Thanks also go to participants in the Criminal Justice Forum for their comments on a draft of this paper and to Russ Weaver for organizing this conference. Finally, thanks go to research assistant Shannon Vamer Alexander. 1. See Richard Bloom, Prosecutorial Discretion, 87 GEO L.J. 1267 (1999); Ellen S. Podgor, Department of Justice Guidelines: Balancing "Discretionary Justice," 13 CORNELL J.L. & PUB. POL'Y 167 (2004); Ellen S. Podgor, The Ethics and Professionalism of Prosecutorsin DiscretionaryDecisions, 68 FORDHAM L. REv. 1511 (2000). 2. See infra notes 9-13 and accompanying text. 3. See infra notes 15-33 and accompanying text. 4. See generally Kathleen F. Brickey, From Enron to WorldCom and Beyond: Life and Crime After Sarbanes-Oxley, 81 WASH. U. L.Q. 357 (2003) (explaining how the Sarbanes-Oxley Act provided prosecutors with new mechanisms for prosecuting fraud); Kathleen F. Brickey, Andersen's Fall from Grace, 81 WASH. U. L.Q. 917 (2003) (explaining how a recently enacted witness tampering statute allowed the government to charge Andersen with obstruction of justice despite the fact that no legal proceedings were pending at the time that documents were destroyed); Stuart P. Green, Uncovering the Cover-up Crime, 42 AM. CRIM. L. REv. (forthcoming 2005); Geraldine Szott Moohr, An Enron Lesson: The Modest Role of Criminal Law in Preventing CorporateCrime, 55 FLA. L. REv. 937 (2003). 1060 PENN STATE LAW REVIEW [Vol. 109:4 been left to civil actions. Finally, the administration's decision to proceed outside the criminal justice process through use of the "enemy combatant" status has offered prosecutor's an additional option.5 In examining new dimensions to prosecutorial discretion, this paper looks at the exercise of discretion in two instances: (1) the designation of Jose Padilla as an enemy combatant; 6 and (2) the charging of Martha Stewart with criminal conduct. 7 It asks whether it was proper to proceed outside the judicial process with Jose Padilla and whether Martha Stewart should have been charged with a crime.8

II. Expanded Prosecutorial Discretion

A. IncreasedFederal Legislation

On May 11, 1998, in an address to the 75th Annual American Law Institute Meeting, Chief Justice William H. Rehnquist described the burden on the federal system of justice caused by over-federalization. 9 He repeated earlier criticisms of "Congress and the President for their propensity to enact more and more legislation, which brings more and more cases into the federal court system."' The impact of federalization on the criminal justice process received heightened consideration when the American Bar Association appointed a task force to examine this issue in 1998. The ABA Report on the "Federalization of Criminal Law," a report from a committee chaired by Edwin Meese, III and William W. Taylor, Ii, stressed the "dramatic increase in the number and variety of federal crimes."11 A startling statistic from this Report was that "of all federal crimes enacted since 1865, over forty percent [were] created since 1970."' 12 The Report told of how new crimes are added to the role of federal criminality "not because federal prosecution of these crimes is necessary but because' 3 federal crime legislation in general is thought to be politically popular."

5. See infra notes 56-74 and accompanying text. 6. See infra notes 75-81 and accompanying text. 7. See infra notes 68-74 and accompanying text. 8. See infra Section IV. 9. Chief Justice William H. Rehnquist, Remarks at the 75th Annual American Law Institute Meeting (May 11, 1998) (on file with author), also excerpted in Chief Justice Raises Concerns on Federalization,30 THE THIRD BRANCH (Administrative Office of the United States Courts, Washington D.C.), June, 1998, at 1, available at http://www.uscourts.gov/ttb/jun98ttb/index.html (last visited Feb. 18, 2005). 10. Id. 11. James A. Strazzella, The Federalization of Criminal Law, 1998 A.B.A. CRIM. JUST. SEC. 2. 12. .Id. 13. Id. See also generally James Strazzella, The Federal Role in Criminal Law, 543 2005] JOSE PADILLA AND MARTHA STEWART

The dismay with increased federalization is not unique to one political party. It is a problem seen by groups espousing a wide array of political and ideological views. For example, the Heritage Foundation has a special group that regularly meets to discuss overcriminalization concerns.14 Likewise, the National Association of Criminal Defense Lawyers (NACDL) notes overfederalization as one of its missions, "urg[ing] Congress to reject its tendency to federalize crime and repeal legislation that is contrary to our system of federalism and sound crime control policy. ,1 5 In a 1998 article, then NACDL President Gerald B. Lefcourt, National District Attorneys Association President William L. Murphy, and ABA Criminal Justice Section Chair Ronald Goldstock stated that, [c]riminal and social problems are increasingly being addressed by the Congress with what many have come to regard as a purely political response-calls to federalize more criminal activity and to lengthen already unwieldy prison terms.... There can be little doubt that increased federal prosecutive authority has adversely affected the Department of Justice's ability to fulfill its role of enforcing traditional federal offenses ....16

B. OverbroadFederal Statutes

The increase in new legislation, permitting increased federal prosecution, is not the only cause of overfederalization and overcriminalization. There is also legislation that lacks sufficient specificity, allowing prosecutors to use federal statutes to bring conduct that is normally handled by state and local bodies into the federal system. 17 Generic statutes allow federal prosecutors discretion to proceed

ANNALS AM. ACAD. POL. & SOC. SC,. 9 (1996) (providing a broad overview of the influence that federal legislation and federal courts have on criminal law and introducing articles on the topic by other commentators). 14. See Paul Rosenzweig, The Over-Criminalization of Social and Economic Conduct, HERITAGE FOUND. POL'Y RES. & ANALYSIS (April 17, 2003), at http://www.heritage.org/Research/Legallssues/lm7.cfm (last visited Feb. 15, 2005); see also http://www.overcriminalized.com/ (last visited Feb. 15, 2005). 15. National Association of Criminal Defense, Legislation: Overfederalization, at http://www.nacdl.org/public.nsf/legislation/overcriminalization (last visited Feb. 15, 2005). 16. Ronald Goldstock, Gerald Lefcourt & William Murphy, Justice That Makes Sense, 21 CHAMPION 6, 7-8 (1997). 17. In some cases these statutes are subject to challenges for being vague. See generally Anthony G. Amsterdam, Note, The Void-for- Vagueness Doctrine in the Supreme Court, 109 U. PA. L. REv. 67 (1960); Robert Batey, Vagueness and the Construction of CriminalStatutes-Balancing Acts, 5 VA. J. SOC. POL'Y & L. 1 (1997). 1062 PENN STATE LAW REVIEW [Vol. 109:4 criminally against conduct that might normally be considered state or local criminal activity. For example, the mail fraud statute, 18 an 1872 federal statute that was focused on re-codifying the Postal Act and criminalizing lottery schemes that used the postal system, allows for federal prosecution of a wide array of conduct. 19 Jed Rakoff, now a federal district court judge, has called the mail fraud statute the prosecutor's "Stradivarius" or "Colt 45. "20 Schemes to defraud, whether they involve diet drug fraud,2' "divorce mill" fraud,2 2 or securities fraud,23 may lead to charges of mail fraud when there is some mailing, no matter how "routine" or "innocent" the mailing might be.24 The Supreme Court has stated that the mailing does not have to be an essential part of the scheme to defraud.25 Equally permissive is the wire fraud statute, a law that was modeled after the mail fraud statute, although enacted in 1952.26 Even when the wire used as the basis for the prosecution passes from one place within a state to another place within the same state, wire fraud may be charged if the wire happened to have passed, unbeknownst to the sender, outside the state. Prosecutors also have enormous discretion to bring criminal charges for conspiracy to defraud, which Justice Learned Hand referred to as the "darling of the modern prosecutor's nursery. 28 Under the generic conspiracy statute, prosecutors can bring charges of conspiracy to commit a specific offense or a conspiracy to defraud the government. When conspiracy to defraud is alleged, there are few restraints on the government's ability to prosecute. 29 As noted by Professor Abraham

18. 18 U.S.C. § 1341 (2005). 19. See Ellen S. Podgor, Mail Fraud: Opening Letters, 43 S. C. L. REv. 223 (1992); Ellen S. Podgor, Do We Need a "Beanie Baby" FraudStatute?, 49 AM. U. L. REv. 1031 (2000). 20. Jed S. Rakoff, The Federal Mail FraudStatute, 18 DuQ. L. REv. 771, 771 (1980). 21. See United States v. Andreadis, 366 F.2d 423 (2nd Cir. 1966). 22. See United States v. Edwards, 458 F.2d 875, 878 (5th Cir. 1972). 23. See Carpenter v. United States, 484 U.S. 19 (1987). 24. See Schmuck v. United States, 489 U.S. 705, 715 (1989) (stating that the Court's precedents do not preclude routine and innocent mailings from fulfilling the mailing element of the mail fraud statute and citing Carpenter, 484 U.S. at 28, in support); see also Pereira v. United States, 347 U.S. 1, 8-9 (1954) (explaining that the mailing does not need to be contemplated as an essential element of the fraud and that one can be found to have caused a mailing even if he did not intend to do so, but knew or could foresee that the mails would be used in the ordinary course of business). 25. See Schmuck, 489 U.S. at 711. 26. See 18 U.S.C. § 1343 (2005). 27. See United States v. Bryant, 766 F.2d 370, 375 (8th Cir. 1985). 28. Harrison v. United States, 7 F.2d 259, 263 (2nd Cir. 1925). 29. See 18 U.S.C.A. § 371 (2005). There is detailed information related to the scope of acceptable prosecutorial conduct in the Notes and Decisions, Section VII. 20051 JOSE PADILLA AND MARTHA STEWART 1063

Goldstein, "[t]he phrase [conspiracy to defraud] has had no fixed meaning. 30 Congress sometimes increases the possibility of new conduct being covered by existing statutes through statutory amendments that are tacked onto legislation that has no relationship to the amendment. For example, Congress increased the scope of the mail fraud statute in an amendment included in the Anti-Drug Abuse Act of 1988, where Congress defined a scheme or artifice to defraud to include "a scheme or ' 3 1 artifice to deprive another of the 'intangible right of honest services. ,' Congress went even further when it added in 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, that mail fraud would no longer require a mailing.32 Mail fraud charges may now be brought if the accused deposits or causes to be deposited "any matter or thing whatever to be sent or delivered by any private or commercial interstate 33 carrier. Courts have imposed some limits when executive discretion appears to stretch a statute beyond its intent. For example, in the case of United States v. Brown,34 the Eleventh Circuit Court of Appeals, in reversing a mail fraud conviction, stated that "the fraud statutes do not cover all behavior which strays from the ideal; Congress has not yet criminalized all sharp conduct, manipulative acts, or unethical transactions. 35 Court- imposed limits, such as those imposed on the mail fraud statute, however, are not a commonplace occurrence.

C. Statutes Charging Extraneous Conduct

In addition to an increased number of federal criminal statutes, and the enormous breadth of many statutes that allow for a wide range of conduct to be prosecuted, prosecutors have an additional tool: crimes that do not explicitly relate to the conduct under investigation, but arise as a result of the investigation itself. These crimes, sometimes termed cover-up"6636 crimes, include offenses such as making false statements,37

30. Abraham S. Goldstein, Conspiracy to Defraud the United States, 68 YALE L.J. 405, 417 (1959). See also Ellen S. Podgor, Criminal Fraud,48 AM. U. L. REv. 729, 730- 31(1999). 31. 18 U.S.C. § 1346 (2005). 32. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, § 250006, 108 Stat. 1796, 2087 (1994). 33. Id. 34. United States v. Brown, 79 F.3d 1550 (1 th Cir. 1996). 35. Id. at 1562. 36. See generally Brickey, From Enron to WorldCom and Beyond, supra note 4; Brickey, Andersen's Fallfrom Grace, supra note 4; Green, supra note 4; Moohr, supra note 4. 37. See 18 U.S.C. § 1001 (2000). 1064 PENN STATE LAW REVIEW [Vol. 109:4

39 obstructing justice, 38 and committing perjury. Prosecutors need tools to protect witnesses providing information during an investigation. They also need tools to protect the evidence that is the subject of the investigation, as receiving truthful information before a grand jury is important in criminal prosecutions. An individual who lies to a government investigator is subject to a charge of making a false statement under the false statement statute.40 Likewise, committing perjury and making a false declaration are charges used when someone does not testify truthfully in a court or provides conflicting statements. 4' Finally, obstruction of justice is a charge used when someone destroys documents, intimidates witnesses, or impedes the government's investigation of a matter. 42 Often, these statutes are easier to satisfy than statutes addressing the actual criminal conduct.4 3 Thus, there is a strong advantage if the prosecution can proceed under one of these statutes, as opposed to proceeding directly against the criminal conduct that was the subject of the initial investigation.

D. ExtraterritorialProsecutions

As a result of globalization, there is a wider range of conduct that can be prosecuted in the federal system.4 4 Prosecutors may prosecute extraterritorial conduct when the company or activity involved in the alleged criminality is entirely outside the United States.4 5 In some instances, the statutes focus specifically on the extraterritorial conduct, as with the Foreign Corrupt Practices Act.46 In other instances, however, the statute may fail to specify whether extraterritorial conduct may be prosecuted, and prosecutors may proceed premised on a theory of objective territoriality, a theory that permits prosecution of conduct that "effects" the United States.47 In a globalized world, conduct that might

38. See 18 U.S.C. §§ 1501-1520 (2000). 39. See 18 U.S.C. § 1621 (2000). 40. See 18 U.S.C. § 1001(a) (2000). 41. See 18 U.S.C. §§ 1621, 1623 (2000). 42. See 18 U.S.C. § 1503 (2004). 43. See Brogan v. United States, 522 U.S. 398, 416 (1998) (Ginsburg, J., concurring) ("The prospect remains that an overzealous prosecutor or investigator-aware that a person has committed some suspicious acts, but unable to make a criminal case-will create a crime by surprising the suspect, asking about those acts, and receiving a false denial."); Martha Stewart Misgivings, WALL ST. J., Mar. 8, 2004, at A16. 44. See generally Ellen S. Podgor, "Defensive Territoriality": A New Paradigmfor the Prosecution of ExtraterritorialBusiness Crimes, 31 GA. J. INT'L & COMP. L. 1 (2002). 45. See United States v. Nippon Paper Indus, Co., 109 F.3d 1, 4 (1st Cir. 1997). 46. See 15 U.S.C. § 78dd-I (2000). 47. See, e.g., United States v. Larsen, 952 F.2d 1099, 1100-01 (9th Cir. 1991); Chua Han Mow v. United States. 730 F.2d 1308, 1311-12 (9th Cir. 1984). 2005] JOSE PADILLA AND MARTHA STEWART 1065

previously have had little influence on the United States may now easily rise to the level of having an "effect" on the country.48

E. Civil v. Criminal Prosecution

Prosecutorial discretion, thus, is in part a function of the increased number of statutes available for prosecuting conduct, the existence of overbroad statutes that allow for a wide range of conduct to be subject to federal prosecution, and extraterritorial application that allows not only for state and local conduct, but also international conduct to be the subject of a criminal prosecution in the United States. Another factor is whether an individual is charged with criminal conduct or whether the activity might fall outside the criminal justice system. Prosecutors often have the discretion to proceed with either criminal or civil actions and, in many instances, they have the option to proceed with both. This is particularly true with tax cases,49 securities matters,5° and antitrust actions. 51 All of the statutes covering these areas of law not only provide for civil remedies, but also permit criminal actions. Some statutes place a higher burden on the government in criminal matters, such as requiring an explicit mens rea of willfulness.52 Clearly, when proceeding criminally, a prosecutor also has the added burden of proving his or her case beyond a reasonable doubt. Professors John Coffee 53 and Kenneth Mann 54 have written about activity that falls within both the criminal and civil spheres. As stated by Professor Coffee, "the criminal sanction has been applied broadly, and sometimes thoughtlessly, to a broad range of essentially civil obligations, some of which were intended as aspirational standards and others 55 which are inherently open-ended and evolving in character.,

48. The Supreme Court heard oral arguments on November 9, 2004 regarding "whether application of the common law revenue rule puts beyond the reach of the federal wire fraud statute, 18 U.S.C. § 1343, the use of interstate wires for the purpose of executing a scheme to defraud a foreign sovereign of its property rights in accrued tax revenue." United States v. Pasquantino, 336 F.3d 321 (4th Cir. 2003), cert. granted, 124 S. Ct. 1875 (2004). 49. See, e.g., United States v. LaSalle Nat'l Bank, 437 U.S. 298, 311 (1978). 50. See 17 C.F.R. § 240.10b-5 (2003). 51. See 15 U.S.C. § 1 (2004). 52. See, e.g., Sansone v. United States, 380 U.S. 343, 344 (1965) (examining § 7201 of the Internal Revenue Code of 1954). 53. See, e.g., John C. Coffee, Jr., ParadigmsLost: The Blurring of the Criminaland Civil Law Models -And What Can Be DoneAbout It, 101 YALEL.J. 1875 (1992). 54. See, e.g., Kenneth Mann, Punitive Civil Sanctions: The Middleground Between Criminal and Civil Law, 101 YALE L.J. 1795 (1992). 55. John C. Coffee, Jr., Does "Unlawful" Mean "Criminal"?: Reflections on the DisappearingTort/Crime Distinction in American Law, 71 B.U. L. REV. 193, 201 (1991). 1066 PENN STATE LAW REVIEW [Vol. 109:4

F. ProceedingOutside the CriminalJustice Process

A relatively unused avenue, until recently, was for the government to proceed outside the criminal justice process by not bringing criminal charges, but by holding an individual as an "enemy combatant." In the recent Supreme Court decision of Hamdi v. Rumsfeld, the Court considered, inter alia, whether the government had the authority to hold a United States citizen as an enemy combatant.56 Hamdi, who was detained and interrogated in Afghanistan, was transferred to the United States naval base in Guantanamo in January 2002. Upon finding that he was an American citizen, the government transferred him to a naval brig in Norfolk, Virginia, where he remained until sent to a brig in Charleston, South Carolina.5 7 The government maintained that Hamdi could be held indefinitely as an enemy combatant. 8 As a result of a Petition for Writ of Habeas Corpus, filed by Hamdi's father, the Supreme Court reviewed this custodial arrangement. The Court cited a post-September 11 Congressional action authorizing the use of military force as the basis for holding Hamdi as an enemy combatant. It ruled that the government could, in fact, hold as enemy combatants "individual[s] who, it alleges, [were] 'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there., 59 Although the Court held that there is "no bar to this Nation's holding one of its own citizens as an enemy combatant," it is necessary to determine that the individual is, in fact, an enemy combatant. 60 The Court stated that "due process demands that a citizen held in the United States as an enemy combatant be given a meaningful opportunity to contest the factual basis for that detention before a neutral decision maker., 61 "[A] citizen-detainee seeking to challenge his classification as an enemy combatant must receive notice of the factual basis for his classification, and a fair opportunity to rebut the Government's factual 62 assertions before a neutral decision maker." Hamdi's case is another example of the government's enormous discretion in deciding whether to proceed outside the criminal process. Originally held as an enemy combatant, he was eventually released by the government and sent to Saudi Arabia upon forfeiture of his U.S.

56. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2635 (2004) (plurality opinion). 57. Id. at 2636. 58. Id. 59. Id. at 2639. 60. Id. at 2640. 61. Id. at 2625. 62. Hamdi v. Rumsfeld, 124 S. Ct. 2633, 2648 (2004) (plurality opinion). 2005] JOSE PADILLA AND MARTHA STEWART 1067 citizenship.63 In the case of John Walker Lindh, prosecutors elected not to go outside of the criminal justice process.64 Lindh eventually pled guilty in the Eastern District of Virginia District Court for the crimes of supplying services to the Taliban and of "carrying an explosive during the commission of a felony.', 65 He received a sentence, pursuant to a plea agreement, of twenty years.66 Concern about the possibility of the government proceeding outside the criminal justice process is noted in the Lindh plea agreement, which explicitly states that "the United States agrees to forego any right it has to treat the defendant as an unlawful enemy combatant" unless the defendant engages in future terrorist conduct.67

1. Jose Padilla

Jose Padilla, an individual against whom the government proceeded outside the criminal justice process, falls within this last category. Jose Padilla was born in Brooklyn, New York. He had a checkered criminal background as a youth; he had been arrested in Florida, and at one point, had been considered a gang member in Chicago.68 He was born a Catholic, but converted to Islam when he married a Middle Eastern woman. On May 8, 2002, he stepped off of a plane coming from Pakistan, via Zurich, at Chicago's O'Hare International Airport and was 69 held by federal agents at the Chicago airport as a material witness. To date, Jose Padilla has never been charged with a crime in the United States. He was initially moved to New York where he was appointed counsel, but was later moved to a brig in South Carolina, where he was deprived of his right to see his attorney. Padilla remains in custody on the South Carolina brig. The Supreme Court chose not to consider Padilla's habeas corpus

63. See Joel Brinkley, From Afghanistan to Saudi Arabia, via Guantanamo, N.Y. TIMES, Oct. 16, 2004, at A4. 64. See Guy Taylor, Top Court Hears 'Enemy Combatant' Case; Lawyers Urge Criminal Trialfor U.S. Citizens, WASH. TIMES, April 29, 2004, at A04. 65. Plea Agreement at 1, U.S. v. Lindh, No. 02-37A (E.D. Va.), available at http://news.findlaw.comihdocs/docs/lindh/uslindh71502pleaag.pdf (last visited Feb. 19, 2005). 66. Id. at 2. 67. Id. at 9. The plea agreement in the Lindh case came under scrutiny when the government decided that Hamdi could be released. See John Walker Lindh is Asking PresidentBush to Reduce His 20-Year Prison Sentence After Being Convicted of Helping the Taliban (NPR radio broadcast, Sept. 29, 2004). 68. See Jodi Wilgoren, Traces of Terror: The Bomb Suspect: From Chicago Gang to Possible Al Qaeda Ties, N.Y. TIMES, June 11, 2002, at A19. 69. Rumsfeld v. Padilla, 124 S. Ct. 2711, 2715 (2004). 1068 PENN STATE LAW REVIEW [Vol. 109:4 claim on the grounds that the matter was not brought in the proper jurisdiction.7° Although the dismissal was without prejudice, it required Padilla's case to proceed before the District of South Carolina, as opposed to the Southern District of New York. This took place on June 2, 2004. On February 28, 2005, the District of South Carolina ruled that Padilla would be released if the government failed to "bring criminal charges against" him or to "hold him as a material witness. 71 Although we have no knowledge of what crime Jose Padilla allegedly committed, if any, Deputy Attorney General James Comey chose to issue a public statement on June 1, 2004, just twenty-eight days before the issuance of an opinion by the Supreme Court.72 In his statement, Comey said that if the Justice Department had proceeded criminally against Padilla, he probably would not have talked because "he would very likely have followed his lawyer's advice and said nothing," and thus the government would not have obtained any information.73 Without trial, without conviction, and without due process of law, Comey said that Padilla was a trained Al Queda soldier bent on "waging war against innocent civilians. 74 Many questions are raised by the prosecutorial treatment of Jose Padilla. For example, was Padilla any different from John Walker Lindh, who was allowed to have counsel? Was he any different from Lindh in that he grew up in a poor community, as opposed to a middle-class family? Why can one case fall outside the judicial process while the other proceeds within? Why did the Justice Department trust the attorneys in one case to get the information they desired and distrust the attorneys in the other case? Finally, if enemy combatants are as treacherous as described by the government, why did the government agree to release Hamdi, even if it was more than two years after his capture?

2. Martha Stewart

In contrast, Martha Stewart, clearly not the terrorist type, was prosecuted within our judicial process. She was charged with extraneous or "cover-up ' 75 conduct. As opposed to charging her with insider

70. Id. 71. See Padilla v. Hanft, 2005 WL 465691, at * 13 (D. S.C. 2005). 72. Deputy Attorney General James Comey, Remarks Regarding Jose Padilla (June 1, 2004), available at http://www.usdoj.gov/dag/speech/2004/dag6104.htm (last visited Feb. 19, 2005). 73. Id. 74. Id. 75. See supra note 4. See also Ellen S. Podgor, Arthur Andersen, LLP, and Martha Stewart: Should Materiality be an Element of Obstruction of Justice?, 44 WASHBURN L.J. 2005] JOSE PADILLA AND MARTHA STEWART 1069

trading, the conduct for which she was being investigated, prosecutors presented evidence that eventually led to Stewart's conviction of an alleged scheme to obstruct justice and make false statements.76 Less known and discussed by the press is the civil suit filed by the Securities and Exchange Commission against Martha Stewart and Peter Bacanovic.77 This civil action asks for remedies, such as disgorgement of the profits from the sale of ImClone stock, a stock that eventually went up in value.78 In the criminal action, Stewart received a jury conviction, a five- month jail sentence, followed by a five-month house arrest and two year's probation, and a $30,000 fine.79 Some claim that this sentence is too lenient, while others are horrified by its harshness. As noted in a headline in the Christian Science Monitor, "Stewart's Sentence Leaves Few Satisfied."80 U.S. Attorney David Kelley claimed that Stewart was prosecuted in ' order to protect "the integrity of this system."', The bottom line, however, is that Martha Stewart was never prosecuted for the criminal acts for which she was initially under investigation. This is also an example of the government proceeding both civilly and criminally against the same defendant. Prosecutorial discretion permitted this to happen.

IV. Common Themes Both the Martha Stewart prosecution and the failure to prosecute Jose Padilla revolve around the government's desire to obtain

(forthcoming 2005). 76. U.S. v. Stewart, No. SI 03 Cr. 717 (S.D.N.Y.), superseding indictment, available at http://news.findlaw.com/hdocs/docs/mstewart/usmspb10504sind.pdf (last visited Mar. 19, 2005). See also Michael L. Seigel & Christopher Slobogin, ProsecutingMartha: The Use (andAbuse?) of Federal ProsecutorialPower, 109 PENN ST. L. REv. 1107 (2005). 77. Complaint, SEC v. Stewart, No. 03 CV 4070 (S.D.N.Y.), available at http://news.findlaw.com/hdocs/docs/mstewart/secmspb60403cmp.html (last visited Feb. 19, 2005); see also Joan Macleod Heminway, Save Martha Stewart? Observations About Equal Justice in U.S. Insider Trading Regulation, 12 TEX. J. WOMEN & L. 247 (2003). 78. See Reuters, ImClone Swings to a Profit, CNN MONEY, July 21, 2004, at http://money.cnn.com/2004/07/2 1/news/midcaps/imclone.reut/index.htm (last visited Feb. 19, 2005). 79. See Constance L. Hays, 5 Months in Jail, and Stewart Vows, "I'll Be Back," N.Y. TIMES, July 17, 2004, at Al. On March 18, 2005, the Second Circuit sent the sentencing issue in her case to the district court for review. See Kristen Crawford, Martha Could Get Resentenced, available at http://money.cnn.com/2005/03/18/ news/newsmakers/martha sentencing/index.htm (last visited Mar. 18, 2005). 80. Ron Scherer, Stewart's Sentence Leaves Few Satisfied, CHRISTIAN SCI. MONITOR, July 19, 2004, available at http://www.csmonitor.com/2004/0719/p03s02- usju.html (last visited Feb. 19, 2005). 81. See Martha Stewart Misgivings, supra note 43. 1070 PENN STATE LAW REVIEW [Vol. 109:4 information. According to Deputy Attorney General Comey, the government obtained information from Padilla by depriving him of an attorney, denying him due process and by proceeding outside of the judicial process. Likewise, in the case of Martha Stewart, the government wanted information and called on her to speak before the Securities and Exchange Commission. She went, and she talked, but they did not like what was said. Therefore, they proceeded to charge her with crimes related to lying instead of proceeding exclusively in the civil sphere or charging the substantive crimes for which they were initially investigating her. These two cases reflect a failure in our legal system. If we believe the government, the system fails because it cannot accommodate criminal charges when information is needed. As such, the judicial process is circumvented, with no satisfaction or relief provided to the public or to the uncharged individuals. The system also fails because undesired information produces extraneous charges, as opposed to charges for what is initially being investigated. Here, the judicial process is skewed with criminal punishments that are levied for conduct that, if improper, could have easily been left in the civil arena. Both failures are the result of a system of broad prosecutorial discretion that demands considerable oversight.